Current Chinese Law Research Articles

Rape-By-Deception in China: A Messy But Pragmatically Desirable Criminal Law

China’s Criminal Law defines rape to include circumstances where a perpetrator “by violence, coercion, or any other means rapes a woman.” We critically investigate whether and how this provision is applicable to the use of deception to obtain sexual intercourse, and make three contributions. First, through a quantitative and qualitative analysis of contemporaneous scholarly commentary and a systematic survey of court judgments from 2015 to 2020, we demonstrate that religious fraudulent sex, medical fraudulent sex, and impersonation of intimate partners are punished as rape in China. Second, we argue that the current Chinese law is normatively desirable vis-à-vis the general consensus among scholarly commentary and legal practices elsewhere. Third, we highlight the unique starting point of Chinese sexual offenses provisions as compared to both common law and civil law jurisdictions, and explain how this “blank slate” contributed to a legal evolution process that prioritizes attaining desired legal outcomes at the expense of neat, coherent principles. More broadly, our case study of China challenges the prevailing assumption in English-language literature that civil law jurisdictions are less receptive towards fraudulent sex criminalization. It also cautions against the practice of reviewing statutory provisions in isolation when determining the substantive law of civil law jurisdictions.

The Utilization and Limitation of Genetic Information in Insurance: Improvement Plan of China’s“Genetic Non-discrimination Act”

According to current Chinese law, insurance companies cannot use genetic information for medical, disease, disability, care and medical accident insurance. Nevertheless, this approach has not effectively solved the problem of “genetic discrimination” in China. Genetic information plays a vital role in insurance. The theory that genetic information can be used in insurance is based on risk classification and price equilibrium principle. Adverse selection can be avoided by dividing genetic information into different risk classes. This is an inevitable requirement of the insurer's right to know. For the consideration of social and public interests, commercial insurance should undertake a reasonable social relief function, but it is necessary to clarify the limitations of the social relief function of commercial insurance, and commercial insurance and social insurance cannot be equated. In terms of the characteristics of genetic information itself, there is no substantial difference between it and general medical information. Insurance covers uncertain risks, and with the progress of technology, the accuracy of genetic testing has also been improved. Therefore, theoretically speaking, it is not necessary to completely prohibit insurers from using genetic information in the insurance field. Therefore, in the future, China's legislation on genetic discrimination should be changed from completely prohibiting the use of genetic information by insurers to conditionally restricting the use of genetic information by insurers. First of all, the way to obtain genetic information by the insurer should be clarified, and the insurer should be prohibited from forcing the insured to carry out predictive genetic testing. The insurance applicant only must inform the specific genetic testing results. Secondly, it is necessary to set conditions for the insurer to use genetic information. The insurer can only use genetic information in personal insurance that meets a certain amount of money, and the use of genetic information must meet legal procedures and obtain the consent of the insured. In addition, it is also necessary to strengthen the regulation of the gene testing industry, formulate strict market access rules, and establish a gene consultant system to make up for the inferior position of the insured in the profession. Finally, improve the rescue of the insured, let professionals participate in the settlement of disputes, and increase the severity of punishment for the illegal use of genetic information by insurance companies.

Labour Protection And Civil Pilots In China: Training Cost In The Legal Swamp

In China, termination of pilot employment has raised many arguments revolving around the training repayment. When pilots resign from their jobs or are fired, airlines generally claim compensation for the training cost. Questions arising in lawsuits can generally be divided into several categories: repayment window, repayment amount, statutory exemptions, and unfair discharge. The incoherent interpretation of the Chinese Labour Contract Law and the Pilot Movement Directive has led to controversies in civil proceedings. Furthermore, training repayment by pilots contributes to regulatory concerns about aviation safety, fair competition, the right to quit, and contractual unconscionability. This article addresses to what extent current Chinese law recognizes training repayment by civil pilots. Through the case study of Chinese judicial decisions and the comparative study of practices in the United States and the European Union, this article concludes with discussions on a viable way forward. China, labour protection, civil pilots, training cost, repayment obligation

The application of the voluntary guardianship regime to same-sex relationships in China

Abstract In China, the establishment of the voluntary guardianship regime in the General Rules of the Civil Law produced an interesting situation where same-sex partners may apply this regime to determine and protect their rights and obligations. This article describes and analyses the recent practices in this regard, drawing on several cases where same-sex partners concluded voluntary guardianship agreements to arrange matters after a ward loses or partially loses civil capacity. This application allows homosexuals freely to appoint their homosexual partner as their guardian, which compensates to some extent for the lack of clear statutory provisions regarding the legal recognition of same-sex relationships in current Chinese law. Nevertheless, there exist several practical problems within the process of applying the legal rules of voluntary guardianship. In addition, owing to the distinct mismatch between the legislative purpose of the voluntary guardianship system and the core essentials of same-sex relationships, the application of voluntary guardianship to same-sex relationships fails to touch on the crucial legal issues of same-sex relationships, for example, financial relations issues and children issues. In view of these, several proposals about both what needs to be done to make voluntary guardianship work better for same-sex couples at this stage and further legislative reform of the formalized regime for same-sex couples in the future are offered.

National Regulations and Local Rules - A Hybrid Regulatory Model of Intelligent Connected Vehicles in China

This paper investigates the laws and regulations of China on the intelligent connected vehicles (ICV). After analyzing the current Chinese laws that are related to the ICVs, this paper makes a list of challenges that the current legal framework needs to face if (1) the ICV-related laws are not revised or new laws are not passed, and (2) there are no regulations or rules made to govern the legal issues of the ICVs. Then this paper starts to focus on the research into the national regulations and local government rules. In this part, literature review of the regulations of the central government and the rules of the local government is completed to investigate how this hybrid model works for the development of ICV industry in China. Detailed analysis of text of provisions is provided. The results indicate that the interaction and interconnection of the regulations at the national level and local government level form an underlying framework for the Chinese ICV industry by providing guidance, policies, and implementation rules.

What is the Current Formal Legal Environment for Foreign Companies in China in the Light of the Phase 1 Trade Agreement? Intellectual Property Rights (IPRs) Protections for Foreign Direct Investment (FDI) in Mainland China

This thesis employs doctrinal legal analysis method by using laws, regulations and legal theories, to evaluate the current protections of intellectual property rights for foreign investors in mainland China. In this thesis, it compares the current Chinese laws and regulations on intellectual property protections with its international Fair and Equitable Treatment principles, previous laws, and Phase 1 Trade Agreement. It concludes that Phase 1 Trade Agreement has been implemented mostly in the current Chinese laws, which also have been improved fundamentally to protect foreign investors’ interests and rights. However, given the backgrounds on rule of law in China, this thesis also recognises the formations of Chinese laws are different from those perceived by the Western societies. Therefore, even China has strive to cohere the standards of international investment law, its laws are still relatively lacking of preciseness and predicability, clarity and effective enforcement.

China Needs to Establish a Directory System of Wildlife Prohibited from Hunting, Breeding, Transferring or Eating Urgently

A small number of Chinese eat wild animals mindlessly to satisfy their special dietary addictions, which led to the SARS outbreak in 2003 and the recent outbreak of the coronavirus pneumonia. The loss is huge, and the current Chinese law is unable to cope with it. It is strongly advised that the “Wildlife Protection Act” be amended as soon as possible to expand its scope of protection and include wildlife that may cause public health incidents. We need to establish a directory system that prohibits hunting, breeding, transferring and eating of wildlife, and force the whole population to adopt an environmentally friendly diet that is responsible to the state and society. It is suggested that the design of the directory system should be based on comprehensive and scientific provisions on hunting, breeding, transporting, storing, and eating, etc. It is also suggested to establish a system that includes law enforcement assessment, a bonus reporting mechanism, and administrative public interest litigation to strengthen administrative, social, and judicial supervision. For offenders, it is suggested to add legal liability of fines and administrative detention in the “Legal liability” section of the “Wildlife Protection Act”. In addition, the Chinese Criminal Law should be amended to include crimes of illegal hunting, breeding, transporting, storing, transferring, purchasing and eating of wild animals.

Pro Bono, Legal Aid, and the Struggle for Justice in China

This chapter examines the role of lawyers in providing legal services to indigent persons and facilitating access to justice in China. The chapter explores the degree to which access to justice in China is different from other countries, and addresses whether those differences are related to China’s political and legal system or China’s status as a middle-income country with a low level in GDP per capita. Under current Chinese law, the provision of legal services to the poor is both a government responsibility and a duty of practising lawyers. The principal argument of this Chapter is that legal aid has reduced the scope of non-professional representation, and that increased legal aid funding has commercialised legal aid in China and hollowed out public interest among lawyers in general. However, as the legal profession grows, a public interest spirit has started to develop outside the official legal aid system, with some lawyers volunteering their services to assist those in legal need and promote public interest.

Building a Taiwan Law Ontology Based on Automatic Legal Definition Extraction

Term extraction is an important task that automatically extracts relative terms from the texts in a given domain. A significant number of web applications need to model information for specific topics. In particular, we have explored a Taiwan government website that maintains the Laws & Regulations Database of the Republic of China (R.O.C) to provide the current Chinese law text to the public. However, the main issue is that there is no efficient structured method to handle such a large number of law texts. Therefore, in this paper, we propose a novel approach to extract legal as well as domain-relative terms, and then build a law ontology. We used the current Chinese law text from the Laws & Regulations Database as the data source. We then utilized natural language processing tools and data mining techniques to extract legal keywords and their definitions automatically. Subsequently, we constructed a Taiwan law ontology with the legal keywords and relative definitions. We have extracted 1114 legal keywords with definitions. With the characteristics of an ontology, users can view one keyword with its information and the associated keywords. Furthermore, we provide a service, which includes both the graphical and text interfaces to users on the web, such that a user can readily access the legal information on the Internet.

Legislation coverage for child injury prevention in China.

ObjectiveTo examine the extent to which effective interventions to prevent unintentional child injury are reflected in the laws and regulations of China.MethodsWe focused on the six common causes of fatal child injuries – drowning, road traffic injury, falls, poisoning, burns and suffocation. We investigated 27 interventions recommended by the United Nations Children’s Fund, the World Health Organization or the European Child Safety Alliance. We searched China National Knowledge Infrastructure and Lawyee for Chinese legislations using keywords and synonyms for the 27 interventions. We reviewed the identified legislations for statements specifying the responsible implementation department.FindingsSeven national laws, nine regulations of the State Council and 46 departmental regulations were found to relate to at least one of the interventions. Although seven of the 27 internationally recommended interventions were covered by Chinese laws, 10 were not covered by any current Chinese law or regulation. None of the interventions against drowning and falls that we investigated was covered by national laws. The implementation responsibilities for effective interventions were either not specified or were assigned to multiple governmental departments in 11 or 20 legislative documents, respectively.ConclusionIn Chinese laws and regulations, interventions proven to prevent major causes of unintentional child injuries are underrepresented and the associated implementation responsibilities are often poorly defined. China should include all such interventions in laws and regulations, and assign implementation responsibility for each to a single department of the national government.

Development of Employer’s Vicarious Liability: A Chinese Perspective

This article reviews the development of employer’s vicarious liability in the context of China’s changing socio-economic background, through a systematic examination and analysis of the relevant legislative framework and judicial decisions. The current Chinese law has broken from the past restrictive socialist confines and recognised employer’s vicarious liability in a manner akin to that in the West. Nevertheless, the Chinese version of employer’s vicarious liability presents quite different legal rules with respect to the different categories of employment relationship recognised in Chinese law, the scope of employer’s vicarious liability, and the employer’s right to indemnity. This article aims to provide a better understanding of the Chinese law of employer’s vicarious liability for both academics and practitioners.

Intellectual Property, Business and China: Taking a Stand

Over the last 40 years, China has developed laws for the protection of intellectual property rights. Unfortunately, these laws have not been uniformly enforced, making such protection problematic for Australian and other foreign organisations wishing to do business in China. This article first scrutinises the current Chinese laws covering intellectual property protection. It then examines the outcomes of a qualitative study that addressed intellectual property protection issues faced by selected Australian organisations conducting business with Chinese counterparts located in China. Forty Australian business managers/owners from Australian companies having business relationships with Chinese firms were interviewed for this study. The findings show that protection issues are only relevant to certain types of businesses that have intellectual property to protect. Nevertheless, a number of the managers/owners interviewed believed that infringement threats were real and inevitable in China, and some had even experienced cases of copying. The study found that, despite such concerns, there was little evidence of organisations taking proactive and positive steps to adequately protect their intellectual property. In order to address this, the authors of this article have developed a protection strategy that incorporates the use of the law, together with firms’ organisational designs, so that foreign firms can protect their rights when interacting with the Chinese market.

Private Investment Fund Formation: An Introduction to Organizational Forms

There are three forms that private investment funds commonly take under current Chinese law, namely limited partnership, limited liability company and trust, each having distinctive characteristics that will have long-lasting effect on the operation of funds. This article considers advantages and disadvantages of these forms.

The Developer’s Role in the Surging Chinese Condominium Housing: Through the Comparative Lens of the US System

Although the Chinese Property Code of 2007 has formalised condominium ownership, the minimal provisions regulating developers in creating condominium projects are incompatible with the crucial role they play. This oversight in Chinese law has been the root cause for many problems and disputes arising from the developers’ management of building projects and administrative practices. This paper explores a wide spectrum of roles that developers play in the planning, construction and management of condominiums in China. This paper also engages in a critical analysis by comparing current Chinese law and practices with the American Uniform Common Interest Ownership Act. It concludes that developing rules to improve regulation of developers willprovide legal certainty and predictability for purchasers.

Legal Autonomy of Tibet: A Chinese Lawyer's Perspective

The conflict happened on the high plateau of Tibet in the spring of 2008 has drawn much attention of the world on the Tibet issue. The politics-oriented media cover of some foreign countries sharply contradictory to that of China makes it very difficult for ordinary Chinese people to know the actual state of affairs and also creates quite unfriendly and detrimental atmosphere for the peaceful solution of this issue in short time. Open and impartial research and discussion on this issue is necessary and helpful to the final resolution. The Tibet “Government-in-exile” has openly stated its stance and opinions on the autonomy of Tibet, while the Chinese Central Government insists that it is not going to negotiate any’Tibet issue’ with the 14th Dalai Lama and his followers except for Dalai Lama’ personal future. Since the position of the Central Government on Tibet is very tough, it seems that any autonomy in Tibet beyond the current Chinese law on regional autonomy in ethnic areas is impossible. This paper is dedicated to probing the history and analyzing the current situation of the autonomy of Tibet, and exploring possibilities of changing the current autonomy. Part II introduces the China’s administration over Tibet before 1950 when Tibet enjoyed great autonomy. Part III comments on the current system of regional autonomy in Tibet. Part IV discusses possible changes to the current autonomy in Tibet. Due to the big difference between the Central Government of China and the Tibet Government-in-exile, the author concludes that it needs a longway to go to the final solution of the Tibet issue. A Chinese Lawyers Persepective on Tibet 1

Granting quasi-property rights to aquaculturists to achieve sustainable aquaculture in China

The quality of the aquaculturists’ rights over their farms plays a vital role in achieving sustainable aquaculture industry. In effect, ownership over natural resources in the light of private law is not established because it is not tradable in China. But the users’ rights over the natural resources have already been recognized under the current Chinese laws. This paper introduces concept of property rights, describes and analyzes the aquaculturists’ rights over the farms under the current Chinese laws. Because of flow of water, agricultural nature, and so-called State ownership over the natural resources, fish farms present a complicated property rights problem in China. Some flaws in the aquaculturists’ rights are identified under the existing laws. To protect the interests of farmers and to pursue sustainable aquaculture, quasi-property rights should be granted to fish farmers.

Informed consent in China: status quo and its future.

Informed consent is one of the fundamental rights of a patient. However it used to be ignored in mainland China and was neither academically discussed nor a matter of practical concern until recent years. Paternalism was dominant in the practice of traditional Chinese medicine which was intensely influenced by Confucianism. The historic medical paternalism was reinforced under communism and the planned economy due to the communist beliefs. But is has been frequently challenged in recent years with patients' awakening awareness of rights and the advent of rights-defending litigation culture in the course of the transformation to market economy. Nevertheless, the current Chinese laws lag behind this patients' awakening awareness and litigation culture. The resulting deficiency in Chinese laws governing medical relations has created dilemmas and chaos in the resolution of medical disputes. In conclusion, the author appeals for the amendment of Chinese law and tries to point out how it should be amended.

The politics, policies, and practices in linguistic minority education in the People's Republic of China: the case of Tibet

Like many nations, China faces the dilemma of designing an education system that, on the one hand, promotes national unity and economic development and, on the other, is sensitive to the unique needs and cultural background of various minority groups. During the regime of Mao Zedong class differentiation in Tibet was seen as a threat to communist ideology. The Tibetan society was condemned as “backward” and Chinese became the official language in all schools. As a result, Tibet is one of the least literate regions in China. Current Chinese law dictates that school curricula should reflect the interests of their constituencies and the minority language should serve as the medium of instruction. However, the examination system to advance to higher education reinforces the Mandarin language. Consequently, many minority parents believe that the sole use of Tibetan may not help their children's future. China's educational success in Tibet (and other minority regions) will depend on her ability to engage ethnic minority students in the universal primary school system.

China's genetic services providers' attitudes towards several ethical issues: a cross-cultural survey.

Attitudes towards ethical, legal and social issues in genetic research and practice were investigated in 402 genetic services providers from 30 provinces and autonomous regions in China. This was done using a Chinese version of an international survey questionnaire on ethics and genetics that has been circulated in 37 nations. In all, 255 study participants completed questionnaires (63%). The majority of the respondents (89%) reported that they agreed with the current Chinese laws and regulations on termination of pregnancy for genetic abnormalities and non-medical indications, on the basis of considerations of population control and family planning. More than half the respondents opposed sex selection by prenatal diagnosis in the absence of an X-linked disorder. However, most of them (86%) would prefer directive counseling. More than half would agree to disclose genetic information to relatives at risk, and would permit third parties such as law enforcement agencies, spouse/partner, blood relatives, employers involving public safety, life and health insurers to access stored DNA without consent. The majority (73%-98%) also thought that DNA fingerprinting should be required for prisoners convicted of or charged with crimes, members of armed forces and all newborns. Although these are only the first part of the results of our international survey, they provide an initial basis for international discussion on ethics and genetics in China.